Search for: "Samuel Bray"
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15 Jun 2025, 3:34 pm
Over at the Divided Argument substack, Samuel Bray offers a more sanguine take, calling the Senate provision [read post]
14 Mar 2025, 8:32 am
(Kyle Pfannenstiel, Idaho Capital Sun) Universal Relief and the Birthright Citizenship Cases (Samuel [read post]
26 Feb 2022, 6:51 pm
Aaron Nielson has a fascinating post at the Notice and Comment blog on Arizona v. City and County of San Francisco, California, a case the Supreme Court heard argument in earlier this week. Professor Nielson describes two arguments made by the Deputy Solicitor General, arguing on behalf of the United States. I want to call attention to the first one, which is a rejection of national/nationwide/universal injunctions, on grounds of both equity principles and Article III, and even in APA cases. It is… [read post]
8 Oct 2024, 10:53 am
The Court's argument this morning in Lackey v. Stinnie showed some fractures among the justices. My prediction is that there will be a majority in favor of the petitioners, though that is not a totally confident prediction: several justices were clearly in favor of the petitioners, a couple were in favor of the respondents, and the rest asked some questions of each side that did not clearly reveal their thinking. But the basic reason for the prediction is that the argument took place on… [read post]
2 Jul 2024, 7:03 am
Herbert Butterfield, the historian often remembered for coining or at least popularizing the phrase "Whig history," published in 1950: It is not open to any of us to say that we will postpone what philosophers call 'the good life'—postpone any of the higher purposes of mankind—until the world is more happily placed or the environment becomes more congenial. Some people have become accustomed to arguing, for example, that we must not pretend to have any art… [read post]
10 Jun 2024, 1:49 pm
In reading an old treatise's discussion of preliminary injunctions, I came across this quotation: An interlocutory injunction is merely provisional in its nature, and does not conclude a right, while the perpetual injunction is a final decree upon full hearing, and concludes all parties in interest. Thomas Carl Spelling, Treatise on Extraordinary Relief in Equity and at Law § 31, at 42 (1893). It's reminder of the principle that equitable decrees were conclusive for the parties,… [read post]
23 Apr 2024, 9:46 am
Brief responses based on the second oral argument this morning: Starbucks wins. The Court will hold, as it should, that the four-factor test should be applied. The general principle here (see Weinberger v. Romero-Barcelo, Nken, e.g.) is that we presume all the traditional principles of equity apply unless there is a clear statement by Congress setting them aside. Note that the four factors do not exhaust the equitable considerations (there are maxims, defense, other equitable principles). In Justice… [read post]
8 Apr 2024, 7:40 pm
If you're interested in the intersection of corporate law, trademark, accounting for profits, and federal equity jurisdiction, you'll be interested in a new amicus brief that my colleague Paul Miller and I just filed in support of a cert petition in Dewberry Group, Inc. v. Dewberry Engineers Inc. A huge thank you to Donald Burke, John B. Goerlich, and William Weber, all of Willkie Farr & Gallagher, for outstanding work on the brief. The basic issue is whether "equity" is a… [read post]
22 Feb 2024, 9:06 am
The Mischief Rule, an article on statutory interpretation that I published several years ago, begins this way: A Tennessee statute imposed duties on railroad engineers. If a railroad engineer found an animal or obstruction on the tracks, the statute required "the alarm whistle to be sounded, and brakes put down, and every possible means employed to stop the train and prevent an accident." But what counted as an "animal" on the tracks? Cows and horses, yes. But what else? Did all… [read post]
22 Jan 2024, 10:55 am
I have not been deep in the weeds of the arguments about Section 3 of the Fourteenth Amendment, unlike my constitutional law casebook coauthors: Mike Paulsen, Michael McConnell, and Will Baude. But it is surprising to me that the former President of the United States seems to be putting most of his legal eggs in one basket—the argument that the President is not an "officer of the United States." This is the lead argument in the brief available here. And for reasons I cannot… [read post]
31 Oct 2018, 8:45 am
Time for Congress to ActNick Bagley and I have a piece today in The Atlantic. We address the legality problems and policy problems with the national injunctions, and we encourage Congress to pass a bill that would affirm the principle that federal courts should give remedies for parties, not for non-parties. One bill that would do this has already been reported out of the House Judiciary Committee--the Injunctive Authority Clarification Act of 2018. A point that Nick and I particularly stress is… [read post]
22 Apr 2024, 6:57 pm
Tomorrow the Supreme Court will hear oral argument in Starbucks Corp. v. McKinney. Read more in this piece at ScotusBlog by Ronald Mann. The question concerns the standard for injunctions sought by the NLRB. Here is a note from the forthcoming edition of Ames, Chafee, and Re on Remedies, my casebook with Emily Sherwin: NOTE ON GOVERNMENT PLAINTIFFS IN EQUITY Does it matter that the plaintiff is the government? Or do the same equitable powers and limitations apply? Cf. National Labor Relations… [read post]
7 Feb 2024, 6:53 pm
Professor Guy-Uriel Charles moderated a fantastic conversation between Professors Mila Sohoni and Sam Bray [read post]
11 Jan 2024, 2:21 pm
Holmberg v. Armbrecht, 327 U.S. 392, 395 (1946): "When Congress leaves to the federal courts the formulation of remedial details, it can hardly expect them to break with historic principles of equity in the enforcement of federally-created equitable rights." The post Reading Statutes in Light of Historic Principles of Equity appeared first on Reason.com. [read post]
18 Nov 2022, 5:01 am
Two days ago I wrote about the brewing battle between (1) one district court's national injunction against the lifting of Title 42 and (2) another district court's purported vacatur of Title 42. Later that day there was another development. Judge Sullivan of the United States District Court for the District of Columbia issued this minute order in the docket: MINUTE ORDER granting 166 Unopposed Emergency Motion for Temporary Stay of the Court's November 15, 2022 Order ("Emergency… [read post]
14 Sep 2022, 3:58 pm
Justice Kagan was interviewed today at Northwestern Law School, and she addressed the national injunction. Here's the account by Josh Gerstein of Politico, which leaves no doubt about where she stands: During her remarks on Wednesday in a conversation with Northwestern Law Dean Hari Osofsky, Kagan took a notably hostile and forceful stand against a practice that hasn't generated much public debate but has roiled the legal community in recent years: individual U.S. District Court judges… [read post]
8 Jul 2022, 7:13 am
Bray, supra, at 426. [read post]
7 Jul 2022, 12:22 pm
Yesterday the Fifth Circuit held oral argument in an appeal of Judge Hanen's DACA decision. You can find a write-up of the oral argument by Mohar Chatterjee at Politico. One thing jumped out at me, and I will quote the relevant line from the Politico story (the transcript is not on PACER yet). Here's a paragraph of wind-up from the story, and then the quote from Texas Solicitor General Judd Stone II: Wednesday's arguments before the 5th Circuit Court of Appeals took place just over a… [read post]
24 Oct 2018, 8:12 pm
An amicus brief in Merck v. Gilead SciencesToday I filed an amicus brief in support of a petition for writ of certiorari in Merck v. Gilead Sciences. The basic issue is whether unclean hands applies to a legal claim for damages for patent infringement. The Federal Circuit said yes. The amicus brief argues no. If you're interested in patent law, equity, or remedies, this case could matter to you. The brief is here. [read post]
25 Apr 2018, 7:40 pm
From Holmes's "The Path of the Law": "It is revolting to have no better reason for a rule of law than that so it was laid down in the time of Henry IV." From Holmes's review of Holdsworth's A History of English Law: "[I]mitation of the past, until we have a clear reason for change, no more needs justification than appetite." According to Westlaw, the former is quoted in 146 cases, 534 secondary sources, and 89 briefs, while the latter is quoted in 0… [read post]
